Can a husband legally divorce his wife who suffers from dementia?

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Can a husband legally divorce his wife who suffers from dementia?

They have bee married or 25 years. The wife is in a full-time care facility and not of sound mind. Her husband wants to sell the house and split it 50/50 but discontinue paying for her care. He has told her children that their divorce will go through in less than 30 days and he is her POA. She has never been declared legally incompetent in court so there is nothing that they can do. They are not sure of the other assets/accounts they have and he will be taking those. The couple is 70/80’s years old.

Asked on March 29, 2019 under Family Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If she suffers from dementia, she needs to be represented by someone who can look after her interests--and that is not her husband, since he is violating his fiduciary duty as her agent or attorney-in-fact (person given power by the POA) in acting in a way that puts his interests ahead of hers. Her friends or family should contact IL's department of Adult Protective Services, which looks out for vulnerable seniors: they can potentially intervene and look to have a legal guardian appointed for her--even if only one for purposes of this case, since she and her husband have different interests and are effectively conflict, so as to make sure she is treated fairly in the divorce (e.g. that he is ordered to keep paying for her care). So yes, he can divorce her--there is no law saying you cannot divorce someone with dementia--but her rights need to be protected, and her husband cannot be counted on to do that, since he is her adversary in the divorce proceeding.
Here is a link for Adult Protective Services: https://www2.illinois.gov/aging/ProtectionAdvocacy/pages/abuse.aspx


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